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HOWTO: Analyze Immunity Provisions in FISA Legislation

Members of Congress are currently negotiating language for Foreign Intelligence Surveillance Act (FISA) legislation, with reports saying that a deal is imminent. As early as this week, Congress may be voting on this legislation, which will determine whether or not telecommunications companies will be given immunity against lawsuits for their illegal participation in the President's warrantless surveillance program. While it's certain that the legislation will be touted as a compromise by its supporters, all reports indicate that the legislation's aim will be to provide blanket immunity for lawbreaking phone companies.

In analyzing the bill's final language, the key question is simple: "Will the court be able to rule on whether the telecoms broke the law?" Reporters, activists, bloggers, and political commentators should keep asking this question until the proponents provide a clear answer.

If the answer is "no", and the language fails this simple litmus test, then the purported "compromise" is still immunity, period. If the court is not allowed to rule on the legality of the surveillance, then the statute is nothing more than an attempt to sweep critical issues of Presidential power and personal privacy under the rug, and prevent meaningful judicial scrutiny of the warrantless surveillance program.

So, let's put a few of the proposals we've seen through the paces:

The Original Immunity Provision: The FISA Amendments Act passed by the Senate in February contained what everyone agreed was immunity. Under that bill, the court would have to dismiss the cases against the telecoms if the Attorney General certified that the companies got a piece of paper from the government saying that the President had authorized the surveillance and that the surveillance had been determined to be legal (by someone). The court would only be reviewing whether or not it was an abuse of discretion for the Attorney General to certify to that fact, a fact that we already know is true based on the Senate Intelligence Committee's report on the bill. The court wouldn't be ruling on whether the telecoms broke the law, so this legislation fails the litmus test and is clearly immunity.

The Republicans' "Compromise" Proposal: Last month, Senator Kit Bond offered [PDF] what was claimed to be a "compromise" proposal on immunity. In particular, that proposal — based on the original immunity provision — would have changed the standard of review under which the court evaluated the Attorney General's certification. Before, the court would be reviewing for any "abuse of discretion" by the Attorney General, that is, any indication that the AG was lying when he said the telecoms got the pieces of paper we already know they got. The Bond proposal upped that standard, by requiring the certification be supported by a "preponderance of the evidence." Yet, as Senators Dodd and Feingold pointed out, the basic structure of the proposal was the same as the original Senate bill: if the telecoms got a piece of paper saying "the President says this is OK", the cases would be dismissed and the companies let off hook, without the court getting to rule on whether they broke the law or not. So, again, this is clearly immunity, and would be even if they upped the review standard all the way up to "beyond a reasonable doubt".

The Impending Bipartisan "Deal": Unfortunately, many news reports about the impending "compromise" between the Republicans and Democrats have been too vague in their descriptions for us to apply the litmus test. For example, The Washington Post reported that the "new plan would give U.S. district courts the chance to evaluate whether telecommunications companies deserve retroactive protection from lawsuits." By using vague terms like "deserve", this statement does not answer the critical question, because it remains unclear whether the court will rule on whether the law was broken. Similarly, another report stated that "lawmakers appear to have reached a deal to allow federal courts to decide whether telecommunications companies should be protected." Again, this does not provide enough information, because it's unclear that deciding whether the telecoms "should be protected" would include a ruling on the legality of the surveillance.

However, other reports have been more precise and allow us to apply the test to the impending "compromise", and — surprise! — it's still immunity. For example, as The Hill makes clear, the legislation would only allow the court "to determine whether telephone companies seeking legal immunity received orders from the Bush administration," and "[the] courts would not decide whether those orders constitute a violation of the law, according to people familiar with the language." Just like the original Senate bill, and just like the Bond proposal, this "compromise" fails the litmus test by failing to provide for a ruling on the legality of the surveillance.

As this simple litmus test makes clear, all of the proposals so far are still immunity. When, in coming days, negotiators release the final language of the "compromise" bill and claim that it isn't immunity, you should apply the same test. Ignore the spin, put aside vague assurances of meaningful court review, and ask this question: Does the court get to rule on whether the telecoms broke the law? If the court doesn't rule on that, it's still immunity, and you should urge Congress to reject it.